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By Rabbi Mordechai I. Willig
n important aspect of the relationship between Jews and non-Jews is the roles and boundaries that define how non-Jews can assist Jews in fulfilling ritual responsibilities. In some other articles we have explored the ethical implications in the interaction between Jews and non-Jews. In this piece, we will explore the halachic implications, through the sugya of Amira l’Nachri, telling a non-Jew to perform melacha on Shabbat. May one ask a non-Jew to carry food from the house to the Sukkah on
Shabbat if the eruv falls down?
For the sake of a mitzvah, one may instruct a non-Jew to do something that is Rabbinically proscribed for a Jew.1 An eruv is effective only in an area in which one may carry by Torah law. If the eruv falls down, a Jew is only prohibited to carry by Rabbinic law. As such, he may instruct a non-Jew to carry, so as to enable the mitzvah of eating in a Sukkah to be fulfilled.2 This leniency requires explanation. One may not tell a non-Jew to do a melacha, a Torah prohibition, even for the purpose of doing a mitzvah.3 If no mitzvah is involved, one may not instruct a non-Jew to perform even an act that is only prohibited Rabbinically. Why is it that if the prohibition is Rabbinic and a mitzvah is involved, a non-Jew may be instructed to perform some act? The Gemara questions whether the Rabbinic injunction against instructing a nonJew applies to Torah laws other than Shabbat, such as muzzling an ox that is threshing, for example.4 Perhaps this question depends upon the nature of the injunction. Do we consider the non-Jew an agent of the Jew who instructs him? If so, the injunction applies to all prohibitions, since an agent is bound to the same laws as the principal who empowered him. 5 www.yutorah.org 35
Sukkot To-Go 5768 / 2007
The Gemara implies that the source of the injunction is the following phrase.6
If thou turn away thy foot because of the Sabbath, from pursuing thy business on My holy day; and call the Sabbath a delight, and the holy of the LORD honourable; and shalt honour it, not doing thy wonted ways, nor pursuing thy business, nor speaking thereof; Isaiah 58:13 In particular, the Gemara points to the latter part of the passuk “nor pursuing thy business, nor speaking thereof”. One may not discuss a melacha that he, or anyone else, plans to perform.7 Instructing a non-Jew to do a melacha necessarily includes mentioning that melacha, which is forbidden. If this problem of mentioning a melacha is the only reason for the injunction against instructing a non-Jew, it is limited to Shabbat and does not apply to other Torah laws. The potential dual nature of the injunction affects Shabbat as well. One may not tell a non-Jew to do a melacha after Shabbat. The instruction on Shabbat constitutes ’discussing the forbidden.’8 However, if one tells a non-Jew on Friday to do melacha on Shabbat, no forbidden discussion takes place. Since the non-Jew can still be considered an agent of the Jew, and as we mentioned above, an agent is bound to the same laws as the principal, we may still have a problem. Indeed, this stricter view is accepted, indicating that we are concerned about agency as well.9 The Gemara ultimately rules that only “seeking your needs” is prohibited.10 It is permissible to seek the “needs of Heaven”, which presumably includes discussion of the mitzvah needs also. This addresses the first component of our case. The source of prohibition for discussing melacha only rules out discussing melachot that are not related to doing a mitzvah. Speaking about the melacha in question to a non-Jew may appear permitted. The question remains whether asking him to perform is still a problem, based on our understanding of agency law. The Gemara does not resolve the question of agency, giving us no determination as to whether the non-Jew is an agent, and thus bound to the same laws as the Jewish principal.11 Our general rule is that unresolved questions that relate to Torah prohibitions require stringency. Even though the entire concept of agency in this context is only a Rabbinic chumra, nevertheless, since the melacha itself is a Torah law we adopt the strict view. The end result, as mentioned earlier, is that we may not tell a non-Jew on Friday to do melacha on Shabbat. When, however, the act that the non-Jew is instructed to perform is only a Rabbinic violation, we may adopt a lenient position with respect to the unresolved question of agency in the Gemara. The non-Jew could then be considered 36 www.yutorah.org
א ם -תּ שׁ י ב מ שּׁ בּ ת ר גְ ל ך , ע שׂ וֹ ת ֲ ֶָ ַ ָ ַ ִ ִ ָ ִ ח פ צ ך בּ י וֹ ם ק ד שׁ י ; וְ ק ר א ת ל שּׁ בּ ת ָ ַ ַ ָ ָָ ִ ְ ָ ְ ֲֶָָ ע ֹנ ג , ל ק ד וֹ שׁ יְ ה ו ה מ כ בּ ד , וְ כ בּ ד תּ וֹ ְַ ִ ָֻ ְ ָ ְ ִ ֶ ְ ִ ָ ְֶָ מ ע שׂ וֹ ת דּ ר כ י ך , מ מּ צ וֹ א ח פ צ ך וְ ד בּ ר ֵַ ְָ ְ ֶ ֲֵ . דּ בר ָָ (ישעיהו )נח:יג
4. Amira L’Nachri
an independent actor, not an agent of a Jew, and a Jew could instruct him to perform an act that is a Rabbinic violation of Shabbat. This is the plain reading of the Rif in the context of a milah on Shabbat. 12 Elsewhere, the Gemara prohibits telling a non-Jew to do a Rabbinically forbidden act, seemingly contradicting the Rif!,13,14 To resolve this contradiction, we learn that the Rif’s ruling is limited to milah and other “needs of Heaven,” which may be discussed. The Gemara’s ruling applies to all other situations, including asking a non-Jew to violate a Rabbinic prohibition that is not for the purpose of a mitzvah. The result of the preceding discussion is that telling a non-Jew to perform a Rabbinically prohibited act (Shvus D’Shvus) is a forbidden discussion. Instructing a nonJew to do a melacha (that is, a violation of Shabbat m’deoraisa) for a mitzvah is prohibited since the non-Jew is considered the Jew’s agent. Yet a shvus d’shvus for the sake of a mitzvah, like telling a non-Jew to perform a Rabbinically prohibited act on Shabbat, is allowed. The mitzvah eliminates the problem of forbidden discussion. The fact that the act is prohibited Rabbinically enables us to rely on the lenient position that the non-Jew is not an agent of the Jew. Returning to our opening question, if the eruv fell down one may ask a non-Jew to carry food to the Sukkah on Shabbat? First, let’s answer the foundational question: May one ask a non-Jew on Friday to perform a Rabbinically prohibited act on Shabbat? According to our analysis, it should be permitted. There is no forbidden discussion, and no agency since one may rely on the lenient position regarding Rabbinic violations. Indeed, the Mishna L’Melech (6:9) cites such an opinion. But this is not the actual ruling - the leniency should in fact be avoided. We rely on the rule that an unresolved Rabbinic question may be resolved leniently (safek derabanan l’kula) only in a case of need. We do not enter into such a situation unless it is unavoidable. Therefore, under ordinary circumstances, we may not tell a non-Jew on Friday to perform a Rabbinically prohibited act on Shabbat, even though it is technically permitted. Similarly, the dispensation of shvus d’shvus for a mitzvah, which is based on the decision rule of safek derabanan l’kula, may be relied upon when necessary. The answer to our question then is that a Jew may ask a non-Jew to bring food to the Sukkah on Shabbat if the eruv has fallen down during Shabbat. However, in a place that has no eruv to begin with, every effort must be made to reach a different arrangement before Shabbat. Only when there is no alternative may a non-Jew be told to perform a Rabbinically prohibited act for the sake of a mitzvah.
1 Rambam Shabbat 6:9, Shulchan Aruch OC 307:5 2 See Beur Halacha 364:2 3 Mishna Berurah 307:19,24 4 Bava Metzia 90a 5 In agency law, the person who dispatches an agent to serve as his representative is referred to as the principal. 6 Shabbat 150a 7 Shulchan Aruch 307:1
8 See ibid. 307:22 9 Rambam 6:1, See Magid Mishna and Hagohos Maimoniyos, and see Shulchan Aruch 307:2 10 Shabbat ibid. 11 Bava Metzia ibid. 12 See Rif on Shabbat 56a 13 Shabbat 122a, 150a 14 Sefer Hamachira #57
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